1
EXHIBIT 10.15
LEASE MANAGEMENT SERVICES, INC.
EQUIPMENT FINANCING AGREEMENT
(Number 10794)
THIS EQUIPMENT FINANCING AGREEMENT NUMBER 10794 ("Agreement") is dated as of
the date set forth at the foot hereof and is between LEASE MANAGEMENT SERVICES,
INC., ("Secured Party") and AURORA BIOSCIENCES CORPORATION ("Debtor").
1. EQUIPMENT; SECURITY INTEREST. The terms and conditions of this
Agreement cover each item of machinery, equipment and other property
(individually an "Item" or "Item of Equipment" and collectively the
"Equipment") described in a schedule now or hereafter executed by the parties
hereto and made a part hereof (individually a "Schedule" and collectively the
"Schedules"). Debtor hereby grants Secured Party a security interest in and to
all Debtor's right, title and interest in and to the Equipment under the
Uniform Commercial Code, such grant with respect to an Item of Equipment to be
as of Debtor's execution of a related Equipment Financing Commitment
referencing this Agreement or, if Debtor then has no interest in such Item, as
of such subsequent time as Debtor acquires an interest in the Item. Such
security interest is granted by Debtor to secure performance by Debtor of
Debtor's obligations to Secured Party hereunder and under any other agreements
under which Debtor has or may hereafter have obligations to Secured Party.
Debtor will ensure that such security interest will be and remain a sole and
valid first lien security interest subject only to the lien of current taxes
and assessment not in default but only if such taxes are entitled to priority
as a matter of law.
2. DEBTOR'S OBLIGATIONS. The obligations of Debtor under this Agreement
respecting an Item of Equipment, except the obligation to pay installment
payments with respect thereto which will commence as set forth in Paragraph 3
below, commence upon the grant to Secured Party of a security interest in the
Item. Debtor's obligations hereunder with respect to an Item of Equipment and
Secured Party's security interest therein will continue until payment of all
amounts due, and performance of all terms and conditions required hereunder
provided, however, that if this Agreement is in default said obligations and
security interest will continue during the continuance of said default. Upon
termination of Secured Party's security interest in an Item of Equipment,
Secured Party will execute such release of interest with respect thereto as
Debtor reasonably requests.
3. INSTALLMENT PAYMENTS AND OTHER PAYMENTS. Debtor will repay advances
Secured Party makes on account of the Equipment in installment payments in the
amounts and at the times set forth in the Schedules, whether or not Secured
Party has rendered an invoice therefor, at the office of Secured Party set
forth at the foot hereof, or to such person and/or at such other place as
Secured Party may from time to time designate by notice to Debtor. Any other
amounts required to be paid Secured Party by Debtor hereunder are due upon
Debtor's receipt of Secured Party's invoice therefor and will be payable as
directed in the invoice. Payments under this Agreement may be applied to
Debtor's then accrued obligations to Secured Party in such order as Secured
Party may choose.
4. NET AGREEMENT; NO OFFSET, SURVIVAL. This Agreement is a net
agreement, and Debtor will not be entitled to any abatement of installment
payments or other payments due hereunder or any reduction thereof under any
circumstance or for any reason whatsoever. Debtor hereby waives any and all
existing and future claims, as offsets, against any installment payments or
other payments due hereunder and agrees to pay the installment payments and
other amounts due hereunder as and when due regardless of any offset or claim
which may be asserted by Debtor or on its behalf. The obligations and
liabilities of Debtor hereunder will survive the termination of the Agreement.
5. FINANCING AGREEMENT. THIS AGREEMENT IS SOLELY A FINANCING AGREEMENT.
DEBTOR ACKNOWLEDGES THAT THE EQUIPMENT HAS OR WILL HAVE BEEN SELECTED AND
ACQUIRED SOLELY BY DEBTOR FOR DEBTOR'S PURPOSES, THAT SECURED PARTY IS NOT AND
WILL NOT BE THE VENDOR OF ANY
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AURORA BIOSCIENCES, CORPORATION
EQUIPMENT FINANCING AGREEMENT NUMBER 10794
PAGE 2 OF 8
EQUIPMENT AND THAT SECURED PARTY HAS NOT MADE AND WILL NOT MAKE ANY AGREEMENT,
REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERCHANTABILITY, CONDITION,
QUALIFICATION OR FITNESS FOR A PARTICULAR PURPOSE OR VALUE OF THE EQUIPMENT OR
ANY OTHER MATTER WITH RESPECT THERETO IN ANY RESPECT WHATSOEVER.
6. NO AGENCY. DEBTOR ACKNOWLEDGES THAT NO AGENT OF THE MANUFACTURER OR
OTHER SUPPLIER OF AN ITEM OF EQUIPMENT OR OF ANY FINANCIAL INTERMEDIARY IN
CONNECTION WITH THIS AGREEMENT IS AN AGENT OF SECURED PARTY. SECURED PARTY IS
NOT BOUND BY A REPRESENTATION OF ANY SUCH PARTY AND, AS CONTEMPLATED IN
PARAGRAPH 27 BELOW, THE ENTIRE AGREEMENT OF SECURED PARTY AND DEBTOR CONCERNING
THE FINANCING OF THE EQUIPMENT IS CONTAINED IN THIS AGREEMENT AS IT MAY BE
AMENDED ONLY AS PROVIDED IN THAT PARAGRAPH.
7. ACCEPTANCE. Execution by Debtor and Secured Party of a Schedule
covering the Equipment or any Items thereof will conclusively establish that
such Equipment has been included under and will be subject to all the terms and
conditions of this Agreement. If Debtor has not furnished Secured Party with
an executed Schedule by the Earlier of fourteen (14) days after receipt thereof
or expiration of the commitment period set forth in the applicable Equipment
Financing Agreement, Secured Party may terminate its obligation to advance
funds as to the applicable Equipment.
8. LOCATION; INSPECTION; USE. Debtor will keep, or in the case of motor
vehicles, permanently garage and not remove from the United States, as
appropriate, each Item of Equipment in Debtor's possession and control at the
Equipment Location designated in the applicable Schedule, or at such other
location to which such Item may have been moved with the prior written consent
of Secured Party. Whenever requested by Secured Party, Debtor will advise
Secured Party as to the exact location of an Item of Equipment. Secured Party
will have the right to inspect the Equipment and observe its use during normal
business hours, subject to Debtor's security procedures and to enter into and
upon the premises where the Equipment may be located for such purpose. The
Equipment will at all times be used solely for commercial or business purposes
and operated in a careful and proper manner and in compliance with all
applicable laws, ordinances, rules and regulations, all conditions and
requirements of the policy or policies of insurance required to be carried by
Debtor under the terms of this Agreement and all manufacturer's instructions
and warranty requirements. Any modifications or additions to the Equipment
required by any such governmental edict or insurance policy will be promptly
made by Debtor.
9. ALTERATIONS; SECURITY INTEREST COVERAGE. Without the prior written
consent of Secured Party, Debtor will not make any alterations, additions or
improvements to any Item of Equipment which detract from its economic value or
functional utility, except as may be required pursuant to Paragraph 8 above.
Secured Party's security interest in the Equipment will include all
modifications and additions thereto and replacements and substitutions
therefor, in whole or in part. Such reference to replacements and
substitutions will not grant Debtor greater rights to replace or substitute
than are provided in Paragraph 11 below or as may be allowed upon the prior
written consent of Secured Party.
10. MAINTENANCE: Debtor will maintain the Equipment in good repair,
condition and working order. Debtor will also cause each Item of Equipment for
which a service contract is generally available to be covered by such a
contract which provides coverages typical to property of the type involved and
is issued by a competent servicing entity.
11. LOSS AND DAMAGE; CASUALTY VALUE. In the event of the loss of, theft
of, requisition of, damage to or destruction of an Item of Equipment ("Casualty
Occurrence"), Debtor will give Secured Party prompt notice thereof and will
thereafter place such Item in good repair,
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AURORA BIOSCIENCES, CORPORATION
EQUIPMENT FINANCING AGREEMENT NUMBER 10794
PAGE 3 OF 8
condition and working order, provided, however, that if such Item is determined
by Secured Party to be lost, stolen, destroyed or damaged beyond repair, is
requisitioned or suffers a constructive total loss as defined in any applicable
insurance policy carried by Debtor in accordance with Paragraph 14 below,
Debtor, at Secured Party's option, will (a) replace such Item with like
Equipment in good repair, condition and working order whereupon such
replacement equipment will be deemed such Item for all purposes hereof or (b)
pay Secured Party the "Casualty Value" of such Item which will equal the total
of (i) all installment payments and other amounts due from Debtor to Secured
Party at the time of such payment and (ii) future installment payments due
with respect to such Item with each such payment including any final uneven
payment discounted at a rate equal to the discount rate of the Federal Reserve
Bank of San Francisco from the date due to the date of such payment.
Upon such replacement or payment, as appropriate, this Agreement and Secured
Party's security interest will terminate with, and only with, respect to the
Item of Equipment so replaced or as to which such payment is made in accordance
with Paragraph 2 above.
12. TITLING; REGISTRATION. Each item of Equipment subject to title
registration laws will at all times be titled and/or registered by Debtor as
Secured Party's agent and attorney-in-fact with full power and authority to
register (but without power to affect title to) the Equipment in such manner
and in such jurisdiction or jurisdictions as Secured Party directs. Debtor
will promptly notify Secured Party of any necessary or advisable retitling
and/or reregistration of an Item of Equipment in a jurisdiction other than the
one in which such Item is then titled and/or registered. Any and all documents
of title will be furnished or caused to be furnished Secured Party by Debtor
within sixty (60) days of the date any titling or registering or restating or
reregistering, as appropriate, is directed by Secured Party.
13. TAXES. Debtor will make all filings as to and pay when due all
personal property and other ad valorem taxes and all other taxes, fees, charges
and assessments based on the ownership or use of the Equipment and will pay as
directed by Secured Party or reimburse Secured Party for all other taxes,
including, but not limited to, gross receipt taxes (exclusive of federal and
state taxes based on Secured Party's net income, unless such net income taxes
are in substitution for or relieve Debtor from any taxes which Debtor would
otherwise be obligated to pay under the terms of this Paragraph 13), fees,
charges and assessments whatsoever, however designated, whether based on the
installment payments or other amounts due hereunder, levied, assessed or
imposed upon the Equipment or otherwise related hereto or to the Equipment, now
or hereafter levied, assessed or imposed under the authority of a federal,
state, or local taxing jurisdiction, regardless of when and by whom payable.
Filings with respect to such other amounts will, at Secured Party's option, be
made by Secured Party or by Debtor as directed by Secured Party.
14. INSURANCE. Debtor will procure and continuously maintain all risk
insurance against loss or damage to the Equipment from any cause whatsoever for
not less than the full replacement value thereof naming Secured Party as Loss
Payee. Such insurance must be in a form and with companies approved by Secured
Party, must provide at least thirty (30) days advance written notice to Secured
Party of cancellation, change or modification in any term, condition, or amount
of protection provided therein, must provide full breach of warranty protection
and must provide that the coverage is "primary coverage" (does not require
contribution from any other applicable coverage). Debtor will provide Secured
Party with an original policy or certificate evidencing such insurance. In the
event of an assignment of this Agreement of which Debtor has notice, Debtor
will cause such insurance to provide the same protection to the assignee as its
interests may appear. The proceeds of such insurance, at the option of the
Secured Party or such assignee, as appropriate, will be applied toward (a)
repair or replacement of the appropriate Item or Items of Equipment, (b)
payment of the Casualty Value thereof and/or (c) payment of, or as provision
for, satisfaction of any other accrued obligations of Debtor hereunder. Debtor
hereby appoints Secured Party as Debtor's attorney-in-fact with full power and
authority to do all things, including, but not limited to, making claims,
receiving payments and endorsing documents, checks or drafts, necessary to
secure payments due under any policy contemplated hereby on account of a
Casualty
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EQUIPMENT FINANCING AGREEMENT NUMBER 10794
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Occurrence. Debtor and Secured Party contemplate that the jurisdictions where
the Equipment will be located will not impose any liability upon Secured Party
for personal injury and/or property damage resulting out of the possession,
use, operation or condition of the Equipment. In the event Secured Party
determines that such is not or may not be the case with respect to a given
jurisdiction, Debtor will provide Secured Party with public liability and
property damage coverage applicable to the Equipment in such amounts and in
such form as Secured Party requires.
15. SECURED PARTY'S PAYMENT. If Debtor fails to pay any amounts due
hereunder or to perform any of its other obligations under this Agreement,
Secured Party may, at its option, but without any obligation to do so, pay such
amounts or perform such obligations, and Debtor will reimburse Secured Party
the amount of such payment or cost of such performance, plus interest at 1.5%
per month.
16. INDEMNITY. Debtor does hereby assume liability for and does agree to
indemnify, defend, protect, save and keep harmless Secured Party from and
against any and all liabilities, losses, damages, penalties, claims, actions,
suits, costs, expenses and disbursements, including court costs and legal
expenses, of whatever kind and nature, imposed on, incurred by or asserted
against Secured Party (whether or not also indemnified against by any other
person) in any way relating to or arising out of this Agreement or the
manufacture, financing, ownership, delivery, possession, use, operation,
condition or disposition of the Equipment by Secured Party or Debtor,
including, without limitation, any claim alleging latent and other defects,
whether or not discoverable by Secured Party or Debtor, and any other claim
arising out of strict liability in tort, whether or not in either instance
relating to an event occurring while Debtor remains obligated under this
Agreement, and any claim for patent, trademark or copyright infringement.
Debtor agrees to give Secured Party and Secured Party agrees to give Debtor
notice of any claim or liability hereby indemnified against promptly following
learning thereof.
17. DEFAULT. Any of the following will constitute an event of default
hereunder: (a) Debtor's failure to pay when due any installment payment or
other amount due hereunder, which failure continues for ten (10) days after the
due date thereof; (b) Debtor's default in performing any other obligation,
term or condition of this Agreement or any other agreement between Debtor and
Secured Party or default under any further agreement providing security for the
performance by Debtor of its obligations hereunder provided such default has
continued for more than twenty (20) days, except as provided in (c) and (d)
hereinbelow, or, without limiting the generality of subparagraph (l)
hereinbelow, default under any lease or any mortgage or other instrument
contemplating the provision of financial accommodation applicable to the real
property where an Item of Equipment is located; (c) any writ or order of
attachment or execution or other legal process being levied on or charged
against any Item of Equipment and not being released or satisfied within ten
(10) days; (d) Debtor's failure to comply with its obligations under
Paragraph 14 above or any transfer by Debtor in violation of Paragraph 21
below; (e) a non-appealable judgment for the payment of money in excess of
$100,000 being rendered by a court of record against Debtor which Debtor does
not discharge or make provision for discharge in accordance with the terms
thereof within ninety (90) days from the date of entry thereof; (f) death or
judicial declaration of incompetency of Debtor, if an individual; (g) the
filing by Debtor of a petition under the Bankruptcy Code or any amendment
thereto or under any other insolvency law or law providing for the relief of
debtors, including, without limitation, a petition for reorganization,
arrangement or extension, or the commission by Debtor of an act of bankruptcy;
(h) the filing against Debtor of any such petition not dismissed or
permanently stayed within thirty (30) days of the filing thereof; (i) the
voluntary or involuntary making of an assignment of substantial portion of its
assets by Debtor for the benefit of creditors, appointment of a receiver or
trustee for Debtor or for any of Debtor's assets, institution by or against
Debtor or any other type of insolvency proceeding (under the Bankruptcy Code or
otherwise) or of any formal or informal proceeding for dissolution,
liquidation, settlement of claims against or winding up of the affairs of
Debtor, Debtor's cessation of business activities or the making by Debtor of a
transfer of all or a material portion of Debtor's assets or inventory not in
the ordinary course of business; (j) the occurrence of any event described in
parts (e), (f), (g), (h) or (i) hereinabove with respect to any guarantor or
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AURORA BIOSCIENCES, INC.
EQUIPMENT FINANCING AGREEMENT NUMBER 10794
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other party liable for payment or performance of this Agreement; (k) any
certificate, statement, representation, warranty or audit heretofore or
hereafter furnished with respect hereto by or on behalf of Debtor or any
guarantor or other party liable for payment or performance of this Agreement
proving to have been false in any material respect at the time as of which the
facts therein set forth were stated or certified or having omitted any
substantial contingent or unliquidated liability or claim against Debtor or any
such guarantor or other party; (l) breach by Debtor of any lease or other
agreement providing financial accommodation under which Debtor or its property
is bound; or (m) a transfer of effective control of Debtor, if an
organization.
18. REMEDIES. Upon the occurrence of an event of default, Secured Party
will have the rights, options, duties and remedies of a Secured Party, and
Debtor will have the rights and duties of a debtor, under the Uniform
Commercial Code (regardless of whether such Code or a law similar thereto has
been enacted in a jurisdiction wherein the rights or remedies are asserted)
and, without limiting the foregoing, Secured Party may exercise any one or more
of the following remedies: (a) declare the Casualty Value or such lesser
amount as may be set by law immediately due and payable with respect to any or
all Items of Equipment without notice or demand to Debtor; (b) xxx from time
to time for and recover all installment payments and other payments then
accrued and which accrue during the pendency of such action with respect to any
or all Items of Equipment; (c) take possession of and, if deemed appropriate,
render unusable any or all Items of Equipment, without demand or notice,
wherever same may be located, without any court order or other process of law
and without liability for any damages occasioned by such taking of possession
and remove, keep and store the same or use and operate or lease the same until
sold; (d) require Debtor to assemble any or all Items of Equipment at the
Equipment Location therefor, or at such location to which such Equipment may
have been moved with the written consent of Secured Party or such other
location in reasonable proximity to either of the foregoing as Secured Party
designates; (e) upon ten (10) days notice to Debtor or such other notice as
may be required by law, sell or otherwise dispose of any Item of Equipment,
whether or not in Secured Party's possession, in a commercially reasonable
manner at public or private sale at any place deemed appropriate and apply the
new proceeds of such sale, after deducting all costs of such sale, including,
but not limited to, costs of transportation, repossession, storage,
refurbishing, advertising and brokers' fees, to the obligations of Debtor to
Secured Party hereunder or otherwise, with Debtor remaining liable for any
deficiency and with any excess being returned to Debtor; (f) upon thirty (30)
days notice to Debtor, retain any repossessed or assembled Items of Equipment
as Secured Party's own property in full satisfaction of Debtor's liability for
the installment payments due hereunder with respect thereto, provided that
Debtor will have the right to redeem such Items by payment in full of its
obligations to Secured Party hereunder or otherwise or to require Secured Party
to sell or otherwise dispose of such Items in the manner set forth in
subparagraph (e) hereinabove upon notice to Secured Party within such thirty
(30) day period; or (g) utilize any other remedy available to Secured Party
under the Uniform Commercial Code or similar provision of law or otherwise at
law or in equity.
No right or remedy conferred herein is exclusive of any other right or remedy
conferred herein or by law; but all such remedies are cumulative of every other
right or remedy conferred hereunder or at law or in equity, by statute or
otherwise, and may be exercised concurrently or separately from time to time.
Any sale contemplated by subparagraph (e) of this Paragraph 18 may be adjourned
from time to time by announcement at the time and place appointed for such
sale, or for any such adjourned sale, without further published notice, Secured
Party may bid and become the purchaser at any such sale. Any sale of an Item
of Equipment, whether under said subparagraph or by virtue of judicial
proceedings, will operate to divest all right, title, interest, claim and
demand whatsoever; either at law or in equity, of Debtor in and to said item
and will be a perpetual bar to any claim against such Item, both at law and in
equity, against Debtor and all persons claiming by, through or under Debtor.
19. DISCONTINUANCE OF REMEDIES. If Secured Party proceeds to enforce any
right under this Agreement and such proceedings are discontinued or abandoned
for any reason or are
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AURORA BIOSCIENCES CORPORATION
EQUIPMENT FINANCING AGREEMENT NUMBER 10794
PAGE 6 OF 8
determined adversely, then and in every such case Debtor and Secured Party will
be restored to their former positions and rights hereunder.
20. SECURED PARTY'S EXPENSES. Debtor will pay Secured Party all costs
and expenses, including attorney's fees and court costs and sales costs not
offset against sales proceeds under Paragraph 18 above, incurred by Secured
Party in exercising any of its rights or remedies hereunder or enforcing any of
the terms, conditions or provisions hereof. This obligation includes the
payment or reimbursement of all such amounts whether an action is ultimately
filed and whether an action is ultimately dismissed.
21. ASSIGNMENT. Without the prior written consent of Secured Party,
Debtor will not sell, lease, pledge or hypothecate, except as provided in this
Agreement, any Item of Equipment or any interest therein or assign, transfer,
pledge, or hypothecate this Agreement or any interest in this Agreement or
permit the Equipment to be subject to any lien, charge or encumbrance of any
nature except the security interest of Secured Party contemplated hereby.
Debtor's interest herein is not assignable and will not be assigned or
transferred by operation of law. Consent to any of the foregoing prohibited
acts applies only in the given instance and is not a consent to any subsequent
like act by Debtor or any other person.
All rights of Secured Party hereunder may be assigned, pledged, mortgaged,
transferred or otherwise disposed of, either in whole or in part, without
notice to Debtor but always, however, subject to the rights of Debtor under
this Agreement. If Debtor is given notice of any such assignment, Debtor will
acknowledge receipt thereof in writing. In the event Secured Party assigns
this Agreement or the installment payments due or to become due hereunder or
any other interest herein, whether as security for any of its indebtedness or
otherwise, no breach or default by Secured Party hereunder or pursuant to any
other agreement between Secured Party and Debtor, should there be one, will
excuse performance by Debtor of any provision hereof, it being understood that
in the event of such default or breach by Secured Party that Debtor will pursue
any rights on account thereof solely against Secured Party. No such assignee,
unless such assignee agrees in writing, will be obligated to perform any duty,
covenant or condition required to be performed by Secured Party in connection
with this Agreement.
Subject always to the foregoing, this Agreement inures to the benefit of, and
is binding upon, the heirs, legatees, personal representative, successors and
assigns of the parties hereto.
22. MARKINGS; PERSONAL PROPERTY. If Secured Party supplies Debtor with
labels, plates, decals or other markings stating that Secured Party has an
interest in the Equipment, Debtor will affix and keep the same prominently
displayed on the Equipment or will otherwise xxxx the Equipment or its then
location or locations, as appropriate, at Secured Party's request to indicate
Secured Party's security interest in the Equipment. The Equipment is, and at
all times will remain, personal property notwithstanding that the Equipment or
any Item thereof may now be, or hereafter become, in any manner affixed or
attached to, or embedded in, or permanently resting upon real property or any
improvement thereof or attached in any manner to what is permanent as by means
of cement, plaster, nails, bolts, screws or otherwise. If requested by Secured
Party, Debtor will obtain and deliver to Secured Party waivers of interest or
liens in recordable form satisfactory to Secured Party from all persons
claiming any interest in the real property on which an Item of Equipment is or
is to be installed or located.
23. LATE CHARGES. Time is of the essence in this Agreement and if any
Installment Payment is not paid within ten (10) days after the due date
thereof, Secured Party shall have the right to add and collect, and Debtor
agrees to pay: (a) a late charge on and in addition to, such Installment
Payment equal to five percent (5%) of such Installment Payment or a lesser
amount if established by any state or federal statute applicable thereto, and
(b) interest on such Installment Payment from thirty (30) days after the due
date until paid at the highest contract rate enforceable against Debtor under
applicable law but never to exceed eighteen percent (18%) per annum.
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EQUIPMENT FINANCING AGREEMENT NUMBER 10794
PAGE 7 OF 8
24. NON-WAIVER. No covenant or condition of this Agreement can be waived
except by the written consent of Secured Party. Forbearance or indulgence by
Secured Party in regard to any breach hereunder will not constitute a waiver of
the related covenant or condition to be performed by Debtor.
25. ADDITIONAL DOCUMENTS. In connection with and in order to perfect and
evidence the security interest in the Equipment granted Secured Party hereunder
Debtor will execute and deliver to Secured Party such financing statements and
similar documents as Secured Party requests. Debtor authorizes Secured Party
where permitted by law to make filings of such financing statements without
Debtor's signature. Debtor further will furnish Secured Party (a) on a
timely basis, Debtor's future financial statements, including Debtor's most
recent annual report, balance sheet and income statement, prepared in
accordance with generally accepted accounting principles, which reports, Debtor
warrants, shall fully and fairly represent the true financial condition of
Debtor (b) any other information normally provided by Debtor to the public
and (c) such other financial data or information relative to this Agreement
and the Equipment, including, without limitation, copies of vendor proposals
and purchase orders and agreements, listings of serial numbers or other
identification data and confirmations of such information, as Secured Party may
from time to time reasonably request. Debtor will procure and/or execute, have
executed, acknowledge, have acknowledged, deliver to Secured Party, record and
file such other documents and showings as Secured Party deems necessary or
desirable to protect its interest in and rights under this Agreement and
interest in the Equipment. Debtor will pay as directed by Secured Party or
reimburse Secured Party for all filing, search, title report, legal and other
fees incurred by Secured Party in connection with any documents to be provided
by Debtor pursuant to this Paragraph or Paragraph 22 and any further similar
documents Secured Party may procure.
26. DEBTOR'S WARRANTIES. Debtor certifies and warrants that the
financial data and other information which Debtor has submitted, or will
submit, to Secured Party in connection with this Agreement is, or will be at
time of delivery, as appropriate, a true and complete statement of the matters
therein contained. Debtor further certifies and warrants: (a) this
Agreement has been duly authorized by Debtor and when executed and delivered by
the person signing on behalf of Debtor below will constitute the legal, valid
and binding obligation, contract and agreement of Debtor enforceable against
Debtor in accordance with its respective terms; (b) this Agreement and each
and every showing provided by or on behalf of Debtor in connection herewith may
be relied upon by Secured Party in accordance with the terms thereof
notwithstanding the failure of Debtor or other applicable party to ensure
proper attestation thereto, whether by absence of a seal or acknowledgment or
otherwise; (c) Debtor has the right, power and authority to grant a security
interest in the Equipment to Secured Party for the uses and purposes herein set
forth and (d) each Item of Equipment will, at the time such Item becomes
subject hereto, be in good repair, condition and working order.
27. ENTIRE AGREEMENT. This instrument with exhibits and related
documentation constitutes the entire agreement between Secured Party and Debtor
and will not be amended, altered or changed except by a written agreement
signed by the parties.
28. NOTICES. Notices under this Agreement must be in writing and must be
mailed by United States mail, certified mail with return receipt requested,
duly addressed, with postage prepaid, to the party involved at its respective
address set forth at the foot hereof or at such other address as each party may
provide on notice to the other from time to time. Notices will be effective
when deposited. Each party will promptly notify the other of any change in
that party's address.
29. GENDER, NUMBER: JOINT AND SEVERAL LIABILITY. Whenever the context
of this Agreement requires, the neuter gender includes the feminine or
masculine and the singular number includes the plural; and whenever the words
"Secured Party" are used herein, they include all assignees of Secured Party,
it being understood that specific reference to "assignee" in
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EQUIPMENT FINANCING AGREEMENT NUMBER 10794
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Paragraph 14 above is for further emphasis. If there is more than one Debtor
named in this Agreement, the liability of each will be joint and several.
30. TITLES. The titles to the Paragraphs of this Agreement are solely
for the convenience of the parties and are not an aid in the interpretation of
the instrument.
31. GOVERNING LAW; VENUE. This Agreement will be governed by and
construed in accordance with the laws of the State of California. Venue for
any action related to the Agreement will be in an appropriate court in San
Mateo County, California, to which Debtor consents, or in another court
selected by Secured Party which has jurisdiction over the parties. In the
event any provision hereof is declared invalid, such provision will be deemed
severable from the remaining provisions of this Agreement, which will remain in
full force and effect.
32. TIME. Time is of the essence of this Agreement and for each and all
of its provisions.
In WITNESS WHEREOF, the undersigned have executed this Agreement as of
_________________, 1996.
DEBTOR:
AURORA BIOSCIENCES CORPORATION
00000 Xxxxxx Xxxxx Xxxx
Xx Xxxxx, XX 00000
By: _______________________________________________
Title: _______________________________________________
SECURED PARTY:
LEASE MANAGEMENT SERVICES, INC.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
By: _______________________________________________
Title: EVP/ General Manager
_______________________________________________
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ADDENDUM TO EQUIPMENT FINANCING AGREEMENT
NUMBER 10794
BETWEEN AURORA BIOSCIENCES CORPORATION
AND LEASE MANAGEMENT SERVICES, INC. ("SECURED PARTY")
The printed form of Equipment Financing Agreement #10794 between the
parties dated May 17, 1996 is amended as follows:
1. In Section 1, line 11 before the word "agreement" insert
"equipment lease or equipment financing."
2. In Section 7, change "fourteen (14) days" to "thirty (30) days"
in the second sentence.
3. In Section 8, line 5, after the first appearance of the words
"Secured Party" insert "which consent shall not be unreasonably withheld,
provided that (i) Debtor is not then in default hereunder, (ii) the Equipment
will continue to be used by and remain under the dominion and control of
Debtor, (iii) the Debtor provides Secured Party with evidence of transit
insurance naming Secured Party as loss payee, (iv) Debtor provides Secured
Party with a Landlord Waiver in form and substance acceptable to Secured Party
and (v) Debtor provides Secured Party with such Financing Statement or
Amendment as Secured Party may reasonably require."
4. In Section 11, line 7, after the word "below" insert "Secured
Party shall first consult with Debtor and then."
5. In Section 12, line 4, after the words "Secured Party" insert
"reasonably."
6. Section 14, delete section in its entirety and replace with
"14. INSURANCE. Debtor will procure and continuously maintain insurance against
loss (other than by reason of war, acts of God, riot, earthquake, flood or the
like) or damage to the Equipment from any reasonable risk whatsoever for not
less than the full replacement value thereof naming Secured Party as Loss Payee
as its interest may appear. Such insurance must be in a form and with companies
approved by Secured Party, must provide at least thirty (30) days advance
written notice to Secured Party of cancellation, change or modification in any
term, condition, or amount of protection provided therein, must provide full
breach of warranty protection and must provide that the coverage is "primary
coverage" (does not require contribution from any other applicable coverage).
Debtor will provide Secured Party with an original policy or certificate
evidencing such insurance. In the event of an assignment of this Agreement of
which Debtor has notice, Debtor will cause such insurance to provide the same
protection to the assignee as its interest may appear. The proceeds of such
insurance, at the option of the Secured Party or such assignee (after
consultation with Debtor), as appropriate, will be applied toward (a) repair or
replacement of the appropriate Item or items of Equipment (b) payment of the
Casualty Value thereof and/or (c) payment of, or as provision for, satisfaction
of any other accrued obligations of Debtor hereunder. Debtor hereby appoints
Secured Party as Debtor's attorney-in-fact will
1.
10
full power and authority, if an Event of Default has occurred and is
continuing, to do all things, including, but not limited to, making claims,
receiving payments and endorsing documents, checks or drafts, necessary to
secure payments due under any policy contemplated hereby on account of a
Casualty Occurrence. Debtor and Secured Party contemplate that the
jurisdictions where the Equipment will be located will not impose any liability
upon Secured Party for personal injury and/or property damage resulting out of
the possession, use, operation or condition of the Equipment. In the event
Secured Party determines that such is not or may not be the case with respect
to a given jurisdiction, Debtor will provide Secured Party with public
liability and property damage coverage applicable to the Equipment in such
amounts and in such form as Secured Party reasonably requires, provided,
however, that public liability insurance with primary limits of $1,000,000 per
occurrence with an excess policy of $2,000,000, shall be deemed to satisfy this
requirement."
7. Section 15, at the beginning of the section insert "Subject to
Section 23 below,".
8. Section 16, delete section in its entirety and replace with
"16. INDEMNITY. Debtor shall indemnify and hold Secured Party harmless from and
against all claims, losses, liabilities (including negligence, tort and strict
liability, but excluding gross negligence or willful misconduct of Secured
Party), damages, judgments, suits, and all legal proceedings, and any and all
reasonable cost and expenses in connection therewith (including reasonable
attorneys' fees) arising out of or in any way connected with (a) the purchase,
financing, ownership, delivery, rejection, nondelivery, possession, use,
transportation, storage, operation, maintenance, repair, return or other
disposition of the Equipment by Debtor; or (b) this Equipment Financing
Agreement, including, without limitation, claims for injury or death of persons
and for damage to property, in each case resulting from the Equipment financed
by Debtor from Secured Party, and claims for patent, trademark or copyright
infringement, and Debtor shall give Secured Party prompt notice of any claim or
liability."
9. Section 17, delete clause (d) in its entirety and replace it
with "(d) Debtor's continued failure to comply with Paragraph 14 above for
three (3) days after notice thereof from Secured Party or any transfer by
Debtor in violation of Paragraph 21 below;".
10. Section 17, add a new sentence at the end of the section to
read as follows: "Anything in this Agreement to the contrary notwithstanding,
until such time as Secured Party has notified Debtor in writing that it has
commenced the exercise of its remedies under Section 18. Debtor may cure any
event of default under subsections (a), (b) and (l) above and, once any such
event of default is so cured, Secured Party shall have no rights or remedies
with respect to the particular cured event of default, under Section 18 or
otherwise."
11. Section 17(h), delete "thirty (30)" and replace it with
"forty-five (45)."
12. Section 17(k), at the end of the clause insert "in excess of
$50,000 per item or in the aggregate."
2.
11
13. Section 17(l), delete the section and replace it with "breach, in
excess of $50,000 per item or in the aggregate, by Debtor of any lease or other
agreement providing financial accommodation under which Debtor or its property
is bound, which breach is not cured or with respect to which no provision has
been made to cure within twenty (20) days;".
14. Section 18, line 1, insert the following in front of the beginning of
the first sentence of the section: "Except as provided otherwise in this
Agreement (as amended by this Addendum)."
15. Section 18(d), line 3, after the word "Secured Party" insert ", which
consent shall not be unreasonably withheld."
16. Section 20, line 1, at the beginning of the section insert "Upon the
occurrence of an Event of Default,".
17. Section 20, line 1, insert "reasonable" between "all" and "cost."
18. Section 20, line 2, "reasonable" between "including" and "attorney's."
19. Section 25, line 4, insert "reasonably" before "requests."
20. Section 25, line 5, after "Secured Party" insert "at the Secured
Party's reasonable request."
21. Section 25, line 17, insert "reasonable" between "report," and "legal"
and between "other" and "fees."
22. Section 31, delete the second sentence beginning in line 2 and replace
it with "Venue for any action related to the Agreement will be in an appropriate
court in San Diego County, California."
IN WITNESS WHEREOF, the undersigned have executed this Addendum this 17th
day of May, 1996.
DEBTOR SECURED PARTY:
AURORA BIOSCIENCES CORPORATION LEASE MANAGEMENT SERVICES, INC.
By: /s/ XXXX X. XXXXXXXX By:
-------------------------- ---------------------------
Title: VP Finance Title:
----------------------- ------------------------
3.
12
LEASE MANAGEMENT SERVICES, INC.
ADDENDUM TO
EQUIPMENT FINANCING AGREEMENT
NUMBER 10794
BY AND BETWEEN
AURORA BIOSCIENCES CORPORATION, AS DEBTOR,
AND
LEASE MANAGEMENT SERVICES, INC., AS SECURED PARTY
AURORA BIOSCIENCES CORPORATION, as Debtor, hereby acknowledges its
responsibility to pay, and agrees to pay any taxes which may be due to the
State of California or where applicable, for the collateral covered under the
above referenced agreement.
DEBTOR:
AURORA BIOSCIENCES CORPORATION
By: ____________________________________________
Title: ____________________________________________
Date: ____________________________________________
